Sunday, December 2, 2012

Laughing Matters

This is a video of a naked wizard with a micro-penis being repeatedly tased by policemen. More on that later.

So the common law makes a lot of use of a concept called "reasonableness." I think lawyers like to pretend that this is a very precise term of art with different, clear meanings in different situations, but the fact is that is crap. There's been manful work in trying to convert "reasonable" into a more objective standard -- several federal appellate judges have tried to make "reasonable," in the context of the tort of negligence, mean something like "cognizant of the cost-justified level of risk," for example -- but the fact of the matter is we frequently throw jury instructions to people that basically say, "Do you think the defendant acted reasonably? Reasonable means acting in a manner that is..." followed by vague bullshit.

And that's all fine. The law is never going to produce outcomes with mechanical certainty, there is plenty of room for vague concepts. But why this vague concept? Is it unique? What are the outlines of this "reasonableness?" Well, we can all agree that there is behavior the bulk of people think is reasonable, there is behavior a majority of people think is reasonable, there is behavior people disagree about, and there is behavior a large or small majority of people think is unreasonable. For most actions (most things that are done, I mean, not most kinds of actions), there is probably majority agreement about whether the action is reasonable (in a single society, anyway). And there are probably a lot of cultural, factual, random, and very human factors going into that judgment. So great.

The problem is, that seems very similar to a lot of human concepts: compare thinking about whether stuff is "reasonable" to thinking about whether it is disgusting, funny, sexy, etc. But the law is really loathe to use those concepts.

Take funny. Funny comes up in the law. Whether something is satire matters for copyright purposes. Whether someone is joking could matter for contract purposes (IE, did he make an offer to contract or was it just a joke). But the law normally avoids engaging the question of humor directly: it just asks whether a reasonable person would have interpreted it as a joke or contract offer, it defines satire without reference to whether it is *successful* satire, etc.

More interestingly, we could use "funny" as a concept by which to judge actions, like we do "reasonable." We don't actually care if someone saw a tortfeasor commit an act of negligence and thought it was reasonable. We only care whether his actions were, in some objective sense, reasonable. It's an "objective" standard.

So take the video of the naked wizard with a micro-penis prancing around a music festival until cops tase him. Was that reasonable force? I don't know! But let's propose another standard: police are justified in using as much force as is reasonable or hilarious. I think reasonable minds could disagree about whether the cops acted in a way that was reasonable, but they clearly acted in a way that was hilarious. If you don't think a naked wizard with a micropenis being tased is funny then you, sir or madame, are a stick in the mud. And maybe we can throw on another check, and get a law like: "force is justified when it is reasonable. If it isn't clear whether it is reasonable, it is justified if it is hilarious. If it still isn't clear, it is not justified if it is horrifying." etc. Rather than trying to parse close cases of reasonableness, we can set up a hierarchy of vague notions our society cares about and go down the list until it isn't a close case anymore. I care more about living in a society where cops can't do things that are horrifying than I do living in a society where cops do things that are marginally reasonable to a random collection of jurors.